David Howard v. State of Indiana (mem. dec.)

Opinion

FILED MEMORANDUM DECISION Nov 15 2017, 9:46 am

Pursuant to Ind. Appellate Rule 65(D), this CLERK Indiana Supreme Court Memorandum Decision shall not be regarded as Court of Appeals and Tax Court precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Darren Bedwell Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Howard, November 15, 2017

Appellant-Defendant, Court of Appeals Case No. 49A02-1704-CR-752 v. Appeal from the Marion County Superior Court. State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff. Judge. The Honorable Richard C. Hagenmaier, Commissioner.

Trial Court Cause No. 49G21-1402- FB-10305

Darden, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 1 of 12 Statement of the Case [1] David Howard appeals his conviction of unlawful possession of a firearm by a 1 serious violent felon, a Class B felony. He also appeals the trial court’s

determination that he is a habitual offender. We affirm in part, reverse in part,

and remand with instructions.

Issues [2] Howard raises two issues, which we restate as:

I. Whether Howard was denied the right to a fair trial by jury in phase one of the trial proceedings. II. Whether Howard waived his right to a jury trial in phase two of the trial on the habitual offender sentencing enhancement.

Facts and Procedural History [3] On February 26, 2014, Officer Gabriel Slaybaugh of the Lawrence Police

Department was dispatched to an apartment in Marion County to investigate a

reported shooting. Upon arriving, he was directed to a back bedroom, where he

found Howard sitting in a chair, bleeding from his mouth. Howard had a

gunshot wound underneath his chin. He did not have any other injuries, and

the room did not show signs of a struggle. Based upon Slaybaugh’s experience

1 Ind. Code § 35-47-4-5 (2012).

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 2 of 12 with firearms and combat training, it appeared to him that Howard’s wound

was self-inflicted.

[4] Slaybaugh was aware paramedics would not enter the apartment until all guns

were secure. He asked Howard asked where the gun was. Howard did not

answer. Instead, he repeatedly asked for an ambulance. After talking with a

woman who also lived in the apartment, Slaybaugh found a handgun hidden in

a shoe in the room where Howard was sitting and secured it. Paramedics

entered the apartment and took Howard to the hospital for treatment.

[5] Next, a detective arrived at the apartment. He searched the bedroom and

determined that there had not been a fight in that room because the blood was

“localized” in the center of the room, where Howard had been sitting, rather

than spattered on the walls and other surfaces. Tr. Vol. II, p. 82.

[6] The State arrested Howard after he received medical treatment. While he was

incarcerated, he made several phone calls which were recorded by jail

personnel. During one call, Howard admitted to accidentally shooting himself.

[7] The State charged Howard with unlawful possession of a firearm by a serious

violent felon, claiming he had a prior conviction for battery, a Class C felony.

The State later added a claim that Howard was an habitual offender.

[8] Howard filed a motion to bifurcate the trial of the possession charge, arguing

that, before trial, the use of language in the charging information that by law

Howard was already adjudicated to be a “serious violent felon” is extremely

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 3 of 12 prejudicial and would deprive of him of a fair trial. Appellant’s App. Vol. II, p.

69. He further argued that he “would be forced to choose between stipulating

to an essential element of the crime and having a fair trial.” Id.

[9] On September 1, 2016, the trial court held a hearing before jury selection was to

begin and heard arguments on the motion to bifurcate. Howard suggested that

the jury should first be required to determine whether he possessed a firearm in

phase one of the trial proceedings, and then later decide in phase two of the trial

proceedings whether it was lawful for him to possess it. The trial court rejected

Howard’s suggestion, stating that such a procedure would confuse the jury

because the officer encountered Howard in his own home, where he would

have otherwise had the right to possess a firearm even without a license. The

trial court then suggested that a joint stipulation by the parties could resolve the

issue.

[10] Subsequently, Howard proposed a stipulation to the trial court, suggesting “If

we stipulate the language might be that the possession was unlawful, and just

leave it at that.” Tr. Vol. II., p. 11. Howard stated he would “stipulate . . . to

the, uh, battery as a C felony conviction.” Id. at 12. The State agreed to

Howard’s proposal. The trial court explained that the stipulation would affect

the preliminary and final instructions and reviewed its revised preliminary

instruction on the elements of the offense with the parties. Howard agreed the

preliminary instruction was “fine.” Id. at 13. He further added, “from [a]

defense point, it doesn’t fix the problem, but it was our choice.” Id. The court

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 4 of 12 ended the discussion by formally granting Howard’s motion to bifurcate the

trial proceedings.

[11] The jury trial was continued until February 2, 2017 due to matters not relevant

to this appeal. After the jury was selected, the trial court read the preliminary

instructions to the jury panel, including the stipulated, previously-approved

Preliminary Instruction Number Four on the elements of the offense. That

instruction provided in relevant part, the following;

In this case, the State of Indiana has charged [Howard] with Count I: Unlawful Possession of a Firearm. The charge reads as follows: Count I David Howard, a person prohibited by Indiana law from possession [of] a firearm, did on or about February 26, 2014, knowingly or intentionally possess a firearm, that is: a handgun. [Howard] has entered a plea of not guilty. Appellant’s App. Vol. II, p. 87.

[12] During the State’s case-in-chief in phase one of the trial proceedings, the State

presented evidence in support of its claim that Howard had possessed the

handgun and accidentally shot himself. The prosecutor informed the jury,

without objection from Howard, that the parties had stipulated to the following:

“The parties agree one [sic], that David Howard is a person who is not allowed

to possess a firearm, and that any possession of a firearm by David Howard is

therefore unlawful.” Tr. Vol. II, p. 96.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 5 of 12 [13] During Howard’s defense, he presented testimony from a witness who testified

that Howard got into a fight with a person named TJ, who pulled out a

handgun and shot Howard before fleeing from the apartment.

[14] After the parties ended their presentations of evidence, the trial court and the

parties had a discussion outside the presence of the jury. The trial court, the

State, and Howard’s counsel discussed the following:

[Court]: Um, I’m assuming we don’t need identification? Anybody from IDET? [Counsel]: Um, yes. I spoke to Mr. Howard, um, on lunch break, and if there is a bad outcome today, I told him that three options were had the jury decided the prior, um, court trial sudden prior [sic] to just stipulate them, and use that as a mitigatory [sic], and Mr. Howard is okay with us stipulating to the priors. [Court]: Okay. [Counsel]: And then we’ll use that as a mitigatory. [Court]: Okay. **** [Court]: Oh, okay. But you – you have agreed to stipulate? [Counsel]: Yeah, yeah. [Howard]: No problem, right Judge? [Counsel]: Yeah, it’s the right decision.

Tr. Vol. II, pp. 118-19.

[15] During the same hearing outside the presence of the jury, the State moved to

enter into evidence State’s Exhibit 9, which was a copy of the judgment of

conviction for the crime of battery as a Class C felony which was the predicate

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 6 of 12 felony for the charge of possession of a firearm by a serious violent felon.

Howard had no objection to the exhibit so long as it was not published to the

jury. The trial court and State agreed with Howard.

[16] After closing arguments, the trial court read the final instructions to the jury.

The instructions included Final Instruction Number Three, which provided in

relevant part:

The crime of Unlawful Possession of a Firearm is defined by statute as follows: A person who knowingly or intentionally possesses a firearm and said possession was unlawful. To convict [Howard] of Count I, the State must have proved each of the following beyond a reasonable doubt: 1. [Howard] 2. Knowingly or Intentionally 3. Possessed 4. A firearm 5. And said possession was unlawful [sic] The Parties have stipulated that [Howard] is a person prohibited by Indiana Law from possessing a firearm.

Appellant’s App. Vol. II, p. 99. The trial court further instructed the jury,

“When the parties stipulate to the existence of a fact, they agree that such fact is

indisputably proven. Once such a stipulation is made, you must assume that

fact is true.” Id. at 105.

[17] The jury found Howard guilty of unlawful possession of a firearm in phase one.

The trial court discharged the jury and asked Howard if he stipulated to the

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 7 of 12 predicate felony for the offense of possessing a handgun while being a serious

violent felon and to the prior convictions underlying the habitual offender

enhancement. Howard responded, “Yes.” Tr. Vol. II, p. 138. The trial court

entered a judgment of conviction for the offense of unlawful possession of a

firearm by a serious violent felon and adjudicated Howard to be an habitual

offender. The trial court then proceeded to impose a sentence, and this appeal

followed.

Discussion and Decision I. Jury Trial on All Elements of the Offense of Unlawful Possession of a Firearm by a Serious Violent Felon [18] Howard argues the trial court deprived him of his right to a jury trial under the

federal and state constitutions in phase one of the proceedings by failing to hold

a separate jury trial to determine whether he had committed a predicate felony

as an element of the offense of unlawful possession of a handgun by a serious

violent felon. In response, the State argues that there is sufficient evidence to

sustain the conviction and, if there is any error, that Howard had invited the

error.

[19] We first note that the doctrine of invited error is grounded in estoppel. Wright v.

State, 828 N.E.2d 904, 907 (Ind. 2005). A party may not take advantage of an

error that he commits, invites, or which is the natural consequence of his own

neglect or misconduct. Id. Invited error precludes relief from counsel’s

strategic decisions gone awry. Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 8 of 12 2016). Even constitutional errors may be invited. Brewington v. State, 7 N.E.3d

946, 977 (Ind. 2014).

[20] In this case, after the trial court had initially denied Howard’s request to

bifurcate his trial to avoid undue prejudice so that the jury would first decide

whether he possessed a firearm, and then decide whether he possessed the

firearm unlawfully, Howard proposed a stipulation. Specifically, he requested

that the first phase of the trial proceeding be limited to whether he possessed a

firearm unlawfully. Howard further stated he would “stipulate . . . to the, uh,

battery as a C felony conviction.” Tr. Vol. II, p. 12. The State and the trial

court accepted Howard’s stipulation. Howard’s counsel stated the process “was

our choice.” Id. at 13.

[21] At trial, Howard and the State agreed to a stipulation, which was read to the

jury, which merely explained that he was not legally allowed to possess a

firearm, without informing the members of the jury of Howard being alleged to

be a serious violent felon. After the conclusion of evidence, Howard informed

the trial court if the jury found against him, he would stipulate that he had prior

convictions. Further, he did not object to the admission into evidence of State’s

Exhibit 9, which indicated that he had been convicted of felony battery in 1993,

if the exhibit was not presented to the jury.

[22] A stipulation to a fact that proves an element of an offense removes the burden

to prove that element. See Slone v. State, 912 N.E.2d 875, 879 (Ind. Ct. App.

2009) (State no longer needed to prove amount of drugs defendant purchased

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 9 of 12 because she stipulated to the amount), trans. denied. Subsequently, after the jury

returned a guilty verdict, Howard did not object to the dismissal of the jury and

instead told the court he stipulated to the underlying felony conviction for the

offense of possession of a firearm by a serious violent felon.

[23] Howard did not object to the admission of evidence that tended to prove he had

committed a predicate felony, and he stipulated to the trial court as to the

validity of the predicate felony when the guilty verdict was returned. In short, it

appears that Howard may have given the trial court every reason to believe that

if the jury found him guilty of unlawful possession of a firearm, there would be

no need for a second phase of the trial proceedings for the State to prove the

existence of a predicate felony. The trial court reasonably could have

concluded during phase one that Howard waived any right to further trial

proceedings through the stipulation on the claim that he was a serious violent

felon. On the other hand, to the extent that the trial court may have erred in

not holding a second phase of the proceedings on the existence of a predicate

felony, Howard may have also invited error therein. The record is unclear.

However, Howard has not demonstrated grounds for reversal on phase one of

the trial proceedings, and we affirm his conviction for unlawful possession of a

firearm by a serious violent felon. We will address in the second part of our

opinion the issue raised regarding phase two of the trial proceedings.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 10 of 12 II. Waiver of Right to Jury Trial on Habitual Offender Enhancement [24] Howard argues that the trial court erred by convicting him of the habitual

offender enhancement without first determining that he had waived his right to

a jury trial on that issue. The State concedes, “this matter should be remanded

to the trial court where an appropriate waiver of the right to trial by jury can be

secured or the evidence supporting the habitual offender can be submitted to a

jury, assuming Howard elects not to plead guilty on the habitual offender

count.” Appellee’s Br., p. 13.

[25] To constitute a valid waiver of the right to a trial by jury, the defendant’s waiver

must be voluntary, knowing, and intelligent. O’Connor v. State, 796 N.E.2d

1230, 1233 (Ind. Ct. App. 2003). The defendant’s voluntary, knowing and

intelligent waiver must be apparent from the court’s record, whether in the form

of a written waiver or a colloquy in open court. Id. at 1234.

[26] Considering the parties’ agreement that the record fails to demonstrate that

Howard voluntarily waived his right to be tried by a jury as to the habitual

offender enhancement, we must reverse that portion of the judgment of

conviction pertaining to the enhancement. Further, we remand to the trial

court with instructions to determine whether Howard waives his right to a jury

trial on the habitual offender enhancement or to grant Howard a jury trial on

the habitual offender enhancement and to proceed accordingly.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 11 of 12 Conclusion [27] For the reasons stated above, we affirm Howard’s conviction for possession of a

firearm by a serious violent felon in phase one of the trial proceedings. We

reverse the trial court’s determination that Howard is a habitual offender and

remand for further proceedings not inconsistent with this decision.

[28] Affirmed in part, reversed in part, and remanded with instructions.

Crone, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-752 | November 15, 2017 Page 12 of 12